Kramer v. State , 1980 Tex. Crim. App. LEXIS 1375 ( 1980 )

OPINION

PHILLIPS, Judge.

This is an appeal from a conviction for harassment. V.T.C.A., Penal Code, Section 42.07(a)(1). Punishment was assessed at six months’ imprisonment, but imposition of sentence was suspended while appellant was placed on probation.

V.T.C.A., Penal Code, Section 42.07 in relevant part to this cause provides as follows:

(a) A person commits an offense if he intentionally:

(1) communicates by telephone or in writing in vulgar, profane, obscene, or indecent language or in a coarse and offensive manner and by this action intentionally, knowingly, or recklessly annoys or alarms the recipient or intends to annoy or alarm the recipient;

(c) An offense under this section is a Class B misdemeanor.

Under this provision of the harassment statute the elements the State must prove are (1) a person (2) intentionally (3) communicates (by telephone or writing) (4)(a) in vulgar, profane, obscene, or indecent language or (b) in a coarse and offensive manner and by such action (5)(a) intentionally, knowingly, or recklessly annoys or alarms the recipient or (b) intends to annoy or alarm the recipient.

The information charging the appellant in this cause recites in relevant part:

. .. SHIRLEY KRAMER ..., on or about the 31[st] day of December A.D., 1975 ..., did unlawfully knowingly and intentionally communicate in writing in a coarse and offensive manner with another, namely; ANNE KEISER, and by this action did intend to annoy and alarm and did annoy and alarm the said ANNE KEISER, the recipient, said written communication being of the tenor following:

Baby Problem Solved!

-With this beautiful

ALL METAL

CASKET-VAULT COMBINATION

CRYPT-a-CRIB

P. 0. Box 11074

Cincinnati, Ohio 45211

By so charging the appellant, the State was obligated to prove elements 1, 2, 3, 4b, and 5b as set forth above.

Appellant’s fifth ground of error challenges the sufficiency of the evidence to sustain the judgment of conviction in this cause. The State, in its case in chief, called the complaining witness, Anne Keiser, who testified that she was the wife of one John Keiser who had by him a son on December 22, 1975. She returned to her home at 526 Shelley Court in Duncanville on Christmas Day, 1975. On December 31, 1975, she found State’s Exhibit No. 1 in the mailbox which was a postcard-type communication containing the above-quoted message that formed the basis for this prosecution. She also identified State’s Exhibit No. 2, a typewritten envelope addressed to her husband which contained State’s Exhibit No. 3, a handwritten letter from a person signing “Shirley.” She also identified State’s Exhibit No. 4, another typewritten envelope addressed to her husband which contained State’s Exhibit No. 5, a typewritten letter also signed by “Shirley.” She testified that State’s Exhibit No. 1 annoyed and alarmed her. On cross-examination, she testified that there was nothing coarse or offensive in the manner in which the postman delivered State’s Exhibit No. 1 to her mailbox. She also acknowledged that the appellant was a former girlfriend of her husband’s. The State next introduced the testimony of Harry Felker, a criminalist with the Dallas County Criminal Investigation Laboratory, who specialized in the examination of questioned documents. He testified that he was of the opinion that State’s Exhibits 1, 2, 4, and 5 were all typed on the same typewriter. He further testified that the handwriting in State’s Exhibit No. 3 matched the handwriting and came from the same individual who provided the exemplars found in State’s Exhibit No. 6. Subsequent testimony established that the appellant provided the exemplars in State’s Exhibit No. 6. On cross-examination, Felker acknowledged that no blow -ups were produced of the typed print, that he was never given a typewriter, could not determine the model of the typewriter used in producing the exhibits referred to or whether the typewriter was manual or electric. He testified that no ink comparison was made but that he did compare the spacing between letters and each letter. He testified he did not know who the author of these various exhibits was. On redirect examination, the witness testified that this particular typewriter involved had an individual characteristic in that the capital letters would type at a position a little lower than the small case letters on the same line.¹ After establishing the source of the handwriting exemplars in State’s Exhibit No. 6, the State rested and the appellant made his first motion for instructed verdict alleging that the State failed to prove the essential elements of the information charging the appellant. This motion was denied. After the State introduced rebuttal testimony from John Keiser, the husband, which did not shed any further evidence on the elements of this offense, the appellant renewed her motion for instructed verdict and it was again denied. Appellant challenges the sufficiency of the evidence to sustain this conviction under her fifth ground of error. We agree with her contention and reverse.

This case was based on circumstantial evidence. The only evidence connecting the appellant to the postcard containing the annoying and alarming message was the testimony of the questioned documents examiner who stated that the same typewriter was used to address that correspondence as well as other envelopes and another letter addressed to the husband of the complaining witness. These letters were simply signed “Shirley.” The typewriter was never produced nor was it established where it was located or whether the appellant was the only one with access to such a typewriter. This deficiency alone is enough to sustain reversal of this case. See Steinhauser v. State, Tex.Cr.App., 577 S.W.2d 257.

There is no evidence to sustain the jury’s conclusion that the appellant intended to annoy or alarm the recipient of the written communication. V.T.C.A., Penal Code, Section 6.03(a) defines intent as a conscious objective or desire to cause the result reached. Such a conclusion is negated by the fact that the communication was addressed to John M. Reiser and not his wife, the complaining witness. The State had available to it the alternative 'element of intentionally, knowingly, or recklessly annoying or alarming the recipient. They chose to pursue the more restrictive element and the evidence fails to establish it. It is undisputed that the complaining witness was indeed a recipient, even though not the intended recipient.

Further, as part of the actus reas of this offense the State chose to allege the manner of the communication’s delivery and that it was “coarse and offensive.” The testimony in this cause shows that the communication was delivered through the United States Postal Service and that nothing in the manner of its delivery was “coarse or offensive.” Since the contents of a message that offends this statute is dealt with in an alternative and specific provision, we must construe the element of “a coarse and offensive manner” as relating to the mode of delivering an offending message.

For the foregoing reasons, the judgment of conviction is reversed. In light of the United States Supreme Court decisions in Burks v. U. S, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), and Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978), this judgment is reformed to reflect an acquittal. This cause is remanded for proceedings consistent with Article 37.12, V.A. C.C.P.

ODOM, J., dissents.

Before the court en banc.

1 . We note that the typefacing in the statement of facts before us possesses this same characteristic of linear deviation. We further note that no testimony was produced as to the precise measurements of the linear deviation described by the witness.